SodaStream International Ltd. _____Ordinary Shares Underwriting Agreement
_____Ordinary
Shares
Underwriting
Agreement
, 2010
X.X.
Xxxxxx Securities LLC
Deutsche
Bank Securities Inc.
As
Representatives of the
several Underwriters
listed
in Schedule 1 hereto
c/o X.X.
Xxxxxx Securities LLC
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
SodaStream
International Ltd., an Israeli company (the “Company”), proposes to issue and
sell to the several Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as representatives (the
“Representatives”), an aggregate of _______ ordinary shares, par value NIS 0.645
per share, of the Company, and certain shareholders of the Company named in
Schedule 2 hereto (the “Selling Shareholders”) propose to sell to the several
Underwriters an aggregate of _______ ordinary shares of the Company
(collectively, the “Underwritten Shares”). In addition, the Selling
Shareholders propose to sell, at the option of the Underwriters, up to an
additional _______ ordinary shares of the Company (collectively, the “Option
Shares”). The Underwritten Shares and the Option Shares are herein
referred to as the “Offered Shares.” The ordinary shares of the Company to
be outstanding after giving effect to the sale of the Offered Shares are
referred to herein as the “Shares.”
As part
of the offering contemplated by this Agreement, and subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the
Financial Industry Regulatory Authority, Inc. (“FINRA”) and all other applicable
laws, rules and regulations, X.X. Xxxxxx Securities LLC (the “Designated
Underwriter”) has agreed to reserve out of the Underwritten Shares purchased by
it under this Agreement, up to _______ shares for sale to certain of the
Company’s directors, employees and other parties associated with the Company
(collectively, the “Directed Share Participants”), as set forth in the
Prospectus (as defined below) under the heading “Underwriting” (the “Directed
Share Program”). The Underwritten Shares to be sold by the Designated
Underwriter to the Directed Share Participants pursuant to the Directed Share
Program (the “Directed Shares”) will be sold by the Designated Underwriter
pursuant to this Agreement at the initial public offering price set forth on the
cover of the Prospectus (as defined below). Any Directed Shares not
subscribed for by any Directed Share Participant by 8:00 a.m. New York City time
on the business day following the date on which this Agreement is executed will
be offered to the public by the Underwriters as set forth in the Prospectus (as
defined below).
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The
Company and the Selling Shareholders hereby confirm their agreement with the
several Underwriters concerning the purchase and sale of the Offered Shares, as
follows:
1.
Registration
Statement. The Company has prepared and filed with the Securities
and Exchange Commission (the “Commission”) under the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement on Form F-1 (File
No. 333-_____), including a prospectus, relating to the Offered Shares.
Such registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to Rule 430A, 430B or 430C
under the Securities Act to be part of the registration statement at the time of
its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus”
means each prospectus included in such registration statement (and any
amendments thereto) before effectiveness, any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act and the prospectus
included in the Registration Statement at the time of its effectiveness that
omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to
Rule 173 under the Securities Act) in connection with confirmation of sales of
the Offered Shares. If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration
Statement” shall be deemed to include such Rule 462 Registration
Statement. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Registration Statement and the
Prospectus.
At or
prior to the Applicable Time (as defined below), the Company had prepared the
following information (collectively with the pricing information set forth on
Annex D, the “Pricing Disclosure Package”): a Preliminary Prospectus dated
_____________, 2010 and each “free-writing prospectus” (as defined pursuant to
Rule 405 under the Securities Act) listed on Annex D hereto.
“Applicable
Time” means [ ] [A/P].M., New York City
time, on ____, 2010.
2.
Purchase of the Offered
Shares by the Underwriters.
(a)
The Company agrees to issue and sell, and each
of the Selling Shareholders agrees, severally and not jointly, to sell, the
Underwritten Shares to the several Underwriters as provided in this Agreement,
and each Underwriter, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase at a price per share (the
“Purchase Price”) of $_______ from the Company the respective number of
Underwritten Shares set forth opposite such Underwriter’s name in Schedule 1
hereto and from each of the Selling Shareholders the number of Underwritten
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the aggregate number of Underwritten Shares to be sold by each of
the Selling Shareholders as set forth opposite their respective names in
Schedule 2 hereto by a fraction, the numerator of which is the aggregate number
of Underwritten Shares to be purchased by such Underwriter as set forth opposite
the name of such Underwriter in Schedule 1 hereto and the denominator of which
is the aggregate number of Underwritten Shares to be purchased by all the
Underwriters from all of the Selling Shareholders hereunder.
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In
addition, each of the Selling Shareholders agrees, severally and not jointly, as
and to the extent indicated in Schedule 2 hereto, to sell the Option Shares to
the several Underwriters as provided in this Agreement, and the Underwriters, on
the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, shall have the option to purchase,
severally and not jointly, from each Selling Shareholder at the Purchase Price
less an amount per share equal to any dividends or distributions declared by the
Company and payable on the Underwritten Shares but not payable on the Option
Shares. If any Option Shares are to be purchased, the number of Option
Shares to be purchased by each Underwriter shall be the number of Option Shares
which bears the same ratio to the aggregate number of Option Shares being
purchased as the number of Underwritten Shares set forth opposite the name of
such Underwriter in Schedule 1 hereto (or such number increased as set forth in
Section 13 hereof) bears to the aggregate number of Underwritten Shares being
purchased from the Company and the Selling Shareholders by the several
Underwriters, subject, however, to such adjustments to eliminate any fractional
Shares as the Representatives in their sole discretion shall make.
The
Underwriters may exercise the option to purchase Option Shares at any time in
whole, or from time to time in part, on or before the thirtieth day following
the date of the Prospectus, by written notice from the Representatives to the
Company and the Attorney-in-Fact (as defined below). Such notice shall set
forth the aggregate number of Option Shares as to which the option is being
exercised and the date and time when the Option Shares are to be delivered and
paid for, which may be the same date and time as the Closing Date (as
hereinafter defined) but shall not be earlier than the Closing Date or later
than the tenth full business day (as hereinafter defined) after the date of such
notice (unless such time and date are postponed in accordance with the
provisions of Section 13 hereof). Any such notice shall be given at least
two business days prior to the date and time of delivery specified
therein.
(b)
The Company and the Selling Shareholders
understand that the Underwriters intend to make a public offering of the Offered
Shares as soon after the effectiveness of this Agreement as in the judgment of
the Representatives is advisable, and initially to offer the Offered Shares on
the terms set forth in the Prospectus. The Company and the Selling
Shareholders acknowledge and agree that the Underwriters may offer and sell
Offered Shares to or through any affiliate of an Underwriter.
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(c)
Payment for the Offered Shares shall
be made by wire transfer in immediately available funds to the accounts
specified to the Representatives by the Company (in the case of the Shares to be
issued and sold by the Company) and the Attorneys-in-Fact or any of them (in the
case of the Shares to be sold by the Selling Shareholders), at the offices of
White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at
10:00 A.M., New York City time, on November ___, 2010, or at such other time or
place on the same or such other date, not later than the fifth business day
thereafter, as the Representatives, the Company and the Attorneys-in-Fact may
agree upon in writing or, in the case of the Option Shares, on the date and at
the time and place specified by the Representatives in the written notice of the
Underwriters’ election to purchase such Option Shares. The time and
date of such payment for the Underwritten Shares is referred to herein as the
“Closing Date,” and the time and date for such payment for the Option Shares, if
other than the Closing Date, is herein referred to as the “Additional Closing
Date.”
Payment
for the Offered Shares to be purchased on the Closing Date or the Additional
Closing Date, as the case may be, shall be made against delivery to the
Representatives for the respective accounts of the several Underwriters of the
Offered Shares to be purchased on such date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the sale of
such Offered Shares duly paid by the Company and the Selling Shareholders as
applicable. Delivery of the Offered Shares shall be made through the
facilities of The Depository Trust Company (“DTC”) unless the Representatives
shall otherwise instruct. The certificates for the Offered Shares
will be made available for inspection and packaging by the Representatives at
the office of DTC or its designated custodian not later than 1:00 P.M., New York
City time, on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(d) Each
of the Company and each Selling Shareholder acknowledges and agrees that the
Underwriters are acting solely in the capacity of an arm’s length contractual
counterparty to the Company and the Selling Shareholders with respect to the
offering of Offered Shares contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company, the Selling Shareholders or any other
person. Additionally, neither the Representatives nor any other
Underwriter is advising the Company, the Selling Shareholders or any other
person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company and the Selling Shareholders shall consult
with their own advisors concerning such matters to the extent each deems it
appropriate and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company or the
Selling Shareholders with respect thereto. Any review by the
Underwriters of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Underwriters and shall not be on behalf of the Company or the Selling
Shareholders.
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3. Representations and
Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus included in the Pricing Disclosure Package, at the time of filing
thereof, complied in all material respects with the Securities Act, and no
Preliminary Prospectus, at the time of filing thereof, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in any Preliminary Prospectus, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 9(c)
hereof.
(b) Pricing Disclosure
Package. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date and as of the Additional Closing Date,
as the case may be, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that
the Company makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Pricing Disclosure
Package, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in Section 9(c)
hereof.
(c) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, used, authorized, approved or referred to and will not prepare, use,
authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Offered Shares (each such communication by the Company or
its agents and representatives (other than a communication referred to in clause
(i) below) an “Issuer Free Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on
Annex D hereto, each electronic road show and any other written
communications approved in writing in advance by the
Representatives. Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been or will be (within the
time period specified in Rule 433) filed in accordance with the Securities Act
(to the extent required thereby) and, when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or Preliminary
Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in such Issuer Free Writing Prospectus or
Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 9(c) hereof.
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(d) Registration Statement and
Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission, and no proceeding
for that purpose or pursuant to Section 8A of the Securities Act against the
Company or related to the offering of the Offered Shares has been initiated or,
to the knowledge of the Company, threatened by the Commission; as of the
applicable effective date of the Registration Statement and any post-effective
amendment thereto, the Registration Statement and any such post-effective
amendment complied and will comply in all material respects with the Securities
Act, and did not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date
and as of the Additional Closing Date, as the case may be, the Prospectus will
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 9(c) hereof.
(e) Financial
Statements. The financial statements (including the related
notes thereto) of the Company and its consolidated subsidiaries included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus comply
in all material respects with the applicable requirements of the Securities Act
and present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries as of the dates indicated and the
results of their operations and the changes in their cash flows for the periods
specified in each case on the basis stated in the Registration Statement; such
financial statements have been prepared in conformity with International
Financial Reporting Standards (“IFRS”), as issued by the International
Accounting Standards Board, applied on a consistent basis throughout the periods
covered thereby, and any supporting schedules included in the Registration
Statement present fairly in all material respects the information required to be
stated therein; the other financial information included in the Registration
Statement, the Pricing Disclosure Package and the Prospectus has been derived
from the accounting records of the Company and its consolidated subsidiaries and
presents fairly in all material respects the information shown
thereby.
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(f) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, (i) there has not been any change in the capital
stock (other than (i) the reverse stock split described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, (ii) the issuance
of Shares upon the exercise of stock options and warrants described as
outstanding in, and the grant of options and awards under existing equity
incentive plans described in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus and (iii) the issuance of Shares upon the conversion
of outstanding preferred stock or convertible securities into ordinary shares as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus), short-term debt or long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial
position, stockholders’ equity, or results of operations of the Company and its
subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) that is material to the Company and its
subsidiaries taken as a whole or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries taken as a
whole; and (iii) neither the Company nor any of its subsidiaries has sustained
any loss or interference with its business that is material to the Company and
its subsidiaries taken as a whole and that is either from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each case as otherwise
disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(g) Organization and Good
Standing. The Company and each of its significant subsidiaries
have been duly organized and are validly existing and in good standing (where
such concept is recognized) under the laws of their respective jurisdictions of
organization, are duly qualified to do business and are in good standing in each
other jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have
all power and authority necessary to own or hold their respective properties and
to conduct the businesses in which they are engaged, except where the failure to
be so qualified or in good standing or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, management, financial position, stockholders’ equity,
results of operations or prospects of the Company and its subsidiaries taken as
a whole or on the performance by the Company of its obligations under this
Agreement (a “Material Adverse Effect”). The subsidiaries listed in
Schedule 3 to this Agreement are the only significant subsidiaries of the
Company.
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(h) Capitalization. The
Company has an authorized capitalization as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company
(including the Offered Shares to be sold by the Selling Shareholders) have been
duly and validly authorized and issued and are fully paid and non-assessable and
are not subject to any pre-emptive or similar rights; except as described in or
expressly contemplated by the Pricing Disclosure Package and the Prospectus,
there are no outstanding rights (including, without limitation, pre-emptive
rights), warrants or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity interest in the
Company or any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options; the capital
stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; and except as otherwise disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, all the
outstanding shares of capital stock or other equity interests of each subsidiary
owned, directly or indirectly, by the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except, in the case of
any foreign subsidiary, for directors’ qualifying shares) and are owned directly
or indirectly by the Company, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other claim of any
third party.
(i) Stock
Options. With respect to the stock options (the “Stock
Options”) granted pursuant to the stock-based compensation plans of the Company
and its subsidiaries (the “Company Stock Plans”), (i) each grant intended to
qualify for the “capital gains track” of Section 102 of the Israel Tax Ordinance
so qualifies, (ii) each grant of a Stock Option has been duly authorized,
approved or ratified by all necessary corporate action, including, as
applicable, approval or ratification by the board of directors of the Company
and any required shareholder approval, and the award agreement governing such
grant (if any) was duly executed and delivered by each party thereto, (iii) each
such grant was made in accordance with the terms of the Company Stock Plans and
all other applicable laws and regulatory rules or requirements, and
(iv) each such grant was properly accounted for in accordance with IFRS in
the financial statements (including the related notes) of the Company. The
Company has not in the past knowingly granted, and there is no and has been no
policy or practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release or other
public announcement of material information regarding the Company or its
subsidiaries or their results of operations or prospects.
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(j) Due
Authorization. The Company has full right, power and authority
to execute and deliver this Agreement and to perform its obligations hereunder;
and all action required to be taken for the due and proper authorization,
execution and delivery by it of this Agreement and the consummation by it of the
transactions contemplated hereby has been duly and validly taken.
(k) Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company.
(l) The Offered
Shares. The Offered Shares to be issued and sold by the
Company hereunder have been duly authorized by the Company and, when issued and
delivered and paid for as provided herein, will be duly and validly issued, will
be fully paid and nonassessable and will conform in all material respects to the
descriptions thereof in the Registration Statement, the Pricing Disclosure
Package and the Prospectus; and the issuance of the Offered Shares is not
subject to any preemptive or similar rights.
(m) No Violation or
Default. Neither (i) the Company nor any of its significant
subsidiaries is in violation of its charter or by-laws or similar
organizational documents; (ii) the Company nor any of its subsidiaries is
in default, and no event has occurred that, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject; or (iii) the Company nor any of its
subsidiaries is in violation of any law or statute or any judgment, order, rule
or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
(n) No Conflicts. The
execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Offered Shares by the Company and the consummation by
the Company of the transactions contemplated by this Agreement will not (i)
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any violation of
the provisions of the charter or by-laws or similar organizational documents of
the Company or any of its significant subsidiaries (iii) result in the violation
of any law or statute or any judgment, order, rule or regulation of any court or
governmental or regulatory authority, except, in the case of clauses (i) and
(iii) above, for any such conflict, breach, violation or default that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
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(o) No Consents
Required. No consent, approval, authorization, order, license,
registration (other than the registration of the Shares with the Israeli
Companies Registrar) or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution, delivery and
performance by the Company of this Agreement, the issuance and sale of the
Offered Shares and the consummation of the transactions contemplated by this
Agreement, except for (i) the registration of the Offered Shares under the
Securities Act, (ii) the listing of the Offered Shares on The NASDAQ Global
Market (“Nasdaq”), (iii) such consents, approvals, authorizations, orders and
registrations or qualifications as may be required by FINRA and under applicable
state securities laws in connection with the purchase and distribution of the
Offered Shares by the Underwriters and (iv) those that have already been
obtained, if any. Subject to the Underwriters’ compliance with
Section 7(d) hereof, the Company is not required to publish a prospectus under
the laws of the State of Israel with respect to the offer and sale of the
Offered Shares.
(p) Legal
Proceedings. Except as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, there are no
legal, governmental or regulatory investigations, actions, suits or proceedings
pending to which the Company or any of its subsidiaries is or may be a party or
to which any property of the Company or any of its subsidiaries is or may be the
subject that, individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to have a
Material Adverse Effect; no such investigations, actions, suits or proceedings
are, to the knowledge of the Company, threatened or contemplated by any
governmental or regulatory authority or threatened by others; and (i) there are
no current or pending legal, governmental or regulatory actions, suits or
proceedings that are required under the Securities Act to be described in the
Registration Statement, the Pricing Disclosure Package or the Prospectus that
are not so described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus and (ii) there are no statutes, regulations or
contracts or other documents that are required under the Securities Act to be
filed as exhibits to the Registration Statement or described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus that are not so
filed as exhibits to the Registration Statement or described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(q) Independent
Accountants. Somekh Xxxxxxx, a member firm of KPMG
International, who has certified certain financial statements of the Company and
its subsidiaries is an independent registered public accounting firm with
respect to the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting
Oversight Board and as required by the Securities Act.
(r) Title to Real and Personal
Property. The Company and its subsidiaries have good and
marketable title to, or have valid rights to lease or otherwise use, all items
of real and personal property that are material to the respective businesses of
the Company and its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except those that
(i) do not materially interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries or (ii) would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect.
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(s) Title to Intellectual
Property. Except as described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, or as would not reasonably be
expected to have a Material Adverse Effect, the Company and its subsidiaries own
or possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses
as currently conducted and as currently proposed to be conducted, and, to the
knowledge of the Company, the conduct of their respective businesses will not
conflict in any material respect with any such rights of others. The Company and
its subsidiaries have not received any notice of any claim of infringement,
misappropriation or conflict with any such rights of others in connection with
its patents, patent rights, licenses, inventions, trademarks, service marks,
trade names, copyrights and know-how, which would reasonably be expected to
result in a Material Adverse Effect.
(t) No Undisclosed
Relationships. No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one hand, and
the directors, officers, stockholders, customers or suppliers of the Company or
any of its subsidiaries, on the other, that is required by the Securities Act to
be described in the Registration Statement and the Prospectus and that is not so
described in such documents and in the Pricing Disclosure Package.
(u) Investment Company
Act. The Company is not required to register as an “investment
company” within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission thereunder (collectively, the
“Investment Company Act”). After giving effect to the offering and
sale of the Offered Shares and the application of the proceeds thereof as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company will not be required to register as an “investment
company” within the meaning of the Investment Company Act.
(v) Taxes. The Company
and its subsidiaries have prepared and timely filed with all appropriate taxing
authorities all federal, state, local and foreign tax returns, reports and other
related information required to be filed through the date hereof by or with
respect to it or has properly requested extensions thereof, except where the
failure to do so would not result in a Material Adverse Effect; all taxes,
assessments, fees and other governmental charges due on such returns or pursuant
to any assessment received by the Company and its subsidiaries or which are
imposed upon it or on any of its properties or assets or in respect of any of
its business, income or profits have been fully paid when due,
other than taxes or charges that are being contested in
good faith by appropriate proceedings and except where the failure to do so
would not result in a Material Adverse Effect; and except as otherwise disclosed
in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there is no tax deficiency that has been, or would reasonably be
expected to be, asserted against the Company or any of its subsidiaries or any
of their respective properties or assets, except for those tax deficiencies
which would not, individually or in the aggregate, have a Material Adverse
Effect.
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(w) Licenses and
Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, except where the failure to possess or
make the same would not, individually or in the aggregate, have a Material
Adverse Effect; and except as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, neither the Company nor any of
its subsidiaries has received notice of any revocation or modification of any
such license, certificate, permit or authorization or has any reason to believe
that any such license, certificate, permit or authorization will not be renewed
in the ordinary course, except for any such revocation, modification or failure
to renew would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
(x) No Labor
Disputes. No labor disturbance by or dispute with employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is contemplated or threatened, and the Company is not aware of any
existing or imminent labor disturbance by, or dispute with, the employees of any
of its or its subsidiaries’ principal suppliers, contractors or customers,
except as would not reasonably be expected to have a Material Adverse
Effect.
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(y) Compliance with and Liability under
Environmental Laws. (i) The Company and its subsidiaries (a)
are, and at all prior times in respect of which the Company may still be subject
to any claim or liability were, in compliance with any and all applicable United
States federal, state and local (including common law), Israeli and European
Community laws, rules, regulations, requirements, decisions, judgments, decrees
and orders relating to pollution or the protection of the environment, natural
resources or human health or safety, including those relating to the generation,
storage, treatment, use, handling, transportation, Release or threat of Release
of Hazardous Materials (collectively, “Environmental Laws”), (b) have
received and are in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable Environmental Laws
to conduct their respective businesses, (c) have not received notice of any
actual or potential liability under or relating to, or actual or potential
violation of, any Environmental Laws, including for the investigation or
remediation of any Release or threat of Release of Hazardous Materials, and have
no knowledge of any event or condition that would reasonably be expected to
result in any such notice, (d) are not conducting or paying for, in whole or in
part, any investigation, remediation or other corrective action pursuant to any
Environmental Law at any location, and (e) are not a party to any order, decree
or agreement (other than decisions of general applicability or permits and
authorizations applicable to the businesses) that imposes any obligation or
liability under any Environmental Law, and (ii) there are no costs or
liabilities associated with Environmental Laws of or relating to the Company or
its subsidiaries, except in the case of each of (i) and (ii) above, for any such
matter, as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; and (iii) except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, (a)
there are no proceedings that are pending, or that are known to be contemplated,
against the Company or any of its subsidiaries under any Environmental Laws in
which a governmental entity is also a party, other than such proceedings
regarding which it is reasonably believed no monetary sanctions of $100,000 or
more will be imposed, (b) the Company and its subsidiaries are not aware of any
facts or issues regarding compliance with Environmental Laws, or liabilities or
other obligations under Environmental Laws, including the Release or threat of
Release of Hazardous Materials, that would reasonably be expected to have a
Material Adverse Effect, and (c) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any Environmental Laws
other than those reasonably expected to be included in the estimated cost of the
Company’s proposed new manufacturing facility as disclosed in the Registration
Statement, the Pricing Disclosure Package and the Prospectus.
(z) Hazardous
Materials. There has been no storage, generation,
transportation, use, handling, treatment, Release or threat of Release of
Hazardous Materials by, relating to or caused by the Company or any of its
subsidiaries (or, to the knowledge of the Company and its subsidiaries, any
other entity (including any predecessor) for whose acts or omissions the Company
or any of its subsidiaries is or would reasonably be expected to be liable) at,
on, under or from any property or facility now or previously owned, operated or
leased by the Company or any of its subsidiaries, or, to the knowledge of the
Company, at, on, under or from any other property or facility, in violation of
any Environmental Laws or in a manner or amount or to a location that would
reasonably be expected to result in any liability to the Company or its
subsidiaries under any Environmental Law, except for any violation or liability
which would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect. “Hazardous Materials” means any
material, chemical, substance, waste, pollutant, contaminant, compound, mixture,
or constituent thereof, in any form or amount, including petroleum (including
crude oil or any fraction thereof) and petroleum products, natural gas liquids,
asbestos and asbestos containing materials, naturally occurring radioactive
materials, brine, and drilling mud, which is regulated or which can give rise to
liability under any Environmental Law. “Release” means any spilling,
leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, or migrating in,
into or through the environment, or in, into, from or through any building or
structure.
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(aa) Disclosure
Controls. The Company and its subsidiaries maintain an
effective system of “disclosure controls and procedures” (as defined in Rule
13a-15(e) of the Exchange Act) that complies with the requirements of the
Exchange Act and that has been designed to ensure that information required to
be disclosed by the Company in reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated and
communicated to the Company’s management as appropriate to allow timely
decisions regarding required disclosure.
(bb) Accounting
Controls. The Company and its subsidiaries maintain systems of
“internal control over financial reporting” (as defined in Rule 13a-15(f) of the
Exchange Act) that comply with the requirements of the Exchange Act and have
been designed by, or under the supervision of, their respective principal
executive and principal financial officers, or persons performing similar
functions, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with IFRS, including, but not limited to, internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with IFRS and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Except as disclosed in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, there are no material weaknesses
in the Company’s internal controls. The Company’s auditors and the Board of
Directors of the Company have been advised of any fraud, whether or not
material, that involved management or other employees who have a significant
role in the Company’s internal controls over financial reporting.
(cc) Insurance. The
Company and each of its significant subsidiaries have insurance covering their
respective properties, operations, personnel and businesses, including business
interruption insurance, which insurance is in amounts and insures against such
losses and risks as are reasonably adequate to protect the Company and its
subsidiaries and their respective businesses; and neither the Company nor any of
its subsidiaries has (i) received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.
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(dd) No Unlawful
Payments. Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the United States Foreign Corrupt Practices Act of
1977, as amended; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(ee) Compliance with Money Laundering
Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”); and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(ff) Compliance with
OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent or employee or affiliate
of the Company or any of its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company will not, directly or
indirectly, use the proceeds of the offering of the Offered Shares hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(gg) No Restrictions on
Subsidiaries. Except as otherwise described in the Prospectus,
the Registration Statement, and the Pricing Disclosure Package, no subsidiary of
the Company is currently prohibited, directly or indirectly, under any agreement
or other instrument to which it is a party or is subject, from paying any
dividends to the Company, from making any other distribution on such
subsidiary’s capital stock or shares, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of such
subsidiary’s properties or assets to the Company or any other subsidiary of the
Company.
(hh) No Broker’s
Fees. Neither the Company nor any of its subsidiaries is a
party to any contract, agreement or understanding with any person (other than
this Agreement) that would give rise to a valid claim against the Company or any
of its subsidiaries or any Underwriter for a brokerage commission, finder’s fee
or like payment in connection with the offering and sale of the Offered
Shares.
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(ii) No Registration
Rights. No person has the right to require the Company or any
of its subsidiaries to register any securities for sale under the Securities Act
by reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Offered Shares by the Company or, to the knowledge of
the Company, the sale of the Offered Shares to be sold by the Selling
Shareholders hereunder, except for rights that have been duly and validly waived
in writing or otherwise satisfied.
(jj) No
Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that would reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Offered
Shares.
(kk) Business with
Cuba. The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida, as
amended) relating to doing business with the Government of Cuba or with any
person or affiliate located in Cuba.
(ll) Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Registration Statement, the Pricing Disclosure Package or the
Prospectus has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(mm)
Statistical and Market
Data. Nothing has come to the attention of the Company that
has caused the Company to believe that the statistical and market-related data
included in the Registration Statement, the Pricing Disclosure Package and the
Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects.
(nn) Xxxxxxxx-Xxxxx
Act. There is no failure on the part of the Company or, to the
knowledge of the Company, any of the Company’s directors or officers, in their
capacities as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations promulgated in connection therewith (the
“Xxxxxxxx-Xxxxx Act”) applicable to the Company, including Section 402 related
to loans.
(oo) Status under the Securities
Act. At the time of filing the Registration Statement and any
post-effective amendment thereto, at the earliest time thereafter that the
Company or any offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Securities Act) of the Offered Shares and at
the date hereof, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405 under the Securities Act.
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(pp) Directed Share
Program. The Prospectus and the Time of Sale Prospectus
comply, and any amendments or supplements thereto, if applicable, as of the date
of such amendment or supplement will comply, in all material respects with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or the Time of Sale Prospectus, as amended or supplemented, if applicable, are
distributed by the Company in connection with the Directed Share
Program. No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those obtained,
is required in connection with the offering of the Directed Shares in any
jurisdiction where the Directed Shares are being offered by the Company, except
such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Directed Shares. The Company
has not offered, or caused the Designated Underwriter or any Designated
Underwriter Entity as defined in Section 10 to offer, Shares to any person
pursuant to the Directed Share Program with the specific intent to unlawfully
influence (i) a customer or supplier of the Company to alter the customer’s
or supplier’s level or type of business with the Company, or (ii) a trade
journalist or publication to write or publish favorable information about the
Company or its products. Except with notice to the Representatives and
compliance with applicable laws, none of the Directed Shares distributed in
connection with the Directed Share Program will be offered or sold outside of
the United States and Israel.
(qq) Passive Foreign Investment Company
Status. The Company was not, for the taxable year ended
December 31, 2009, and, after giving effect to the offering and sale of the
Offered Shares and the application of the proceeds thereof as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, does
not expect to become in the future, a “passive foreign investment company” as
defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder.
(rr) No
Immunity. Neither the Company nor its subsidiaries nor any of
their properties or assets has any immunity from the jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution or otherwise) under the laws of the
State of Israel.
(ss) Approved Enterprise
Status. (i) The Company is in compliance in all material
respects with all conditions and requirements stipulated by the instruments of
approval granted to it with respect to the “Approved Enterprise” status of any
of the facilities of the Company as well as with respect to the other tax
benefits received by the Company as set forth under the caption “Israeli Tax
Considerations and Government Programs” in the Prospectus and by Israeli laws
and regulations relating to such “Approved Enterprise” status and the
aforementioned other tax benefits received by the Company; (ii) all information
supplied by the Company with respect to applications relating to such “Approved
Enterprise” status was true, correct and complete in all material respects when
supplied to the appropriate authorities; and (iii) the Company has not received
any notice of any proceeding or investigation relating to revocation or
modification of any “Approved Enterprise” status granted with respect to any of
the Company’s facilities, in each case except for any failure to comply,
inaccuracy, or notice that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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(tt) Enforcement of
Judgments. Subject to the conditions and qualifications set
forth in the Registration Statement and the Preliminary Prospectus, a final and
conclusive judgment against the Company for a definitive sum of money entered by
any court in the United States would be enforced by an Israeli
court.
4. Representations and
Warranties of the Selling Shareholders. Each of the Selling
Shareholders severally, and not jointly, represents and warrants to each
Underwriter and the Company that:
(a) Required Consents;
Authority. All consents, approvals, authorizations and orders
necessary for the execution and delivery by such Selling Shareholder of this
Agreement, the Power of Attorney (the “Power of Attorney”) and the Custody
Agreement (the “Custody Agreement”) hereinafter referred to, and for the sale
and delivery of the Offered Shares to be sold by such Selling Shareholder
hereunder, have been obtained, except for such consents, approvals,
authorizations or orders, which, if not obtained, would not affect such Selling
Shareholder’s ability to consummate the transactions herein contemplated (a
“Selling Shareholder Material Adverse Effect”); and such Selling Shareholder has
full right, power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement and to sell, assign, transfer and deliver the
Offered Shares to be sold by such Selling Shareholder hereunder; this Agreement,
the Power of Attorney and the Custody Agreement have each been duly authorized
by such Selling Shareholder, such Selling Shareholder has duly executed and
delivered the Power of Attorney and the Custody Agreement, and this Agreement
has been duly executed and delivered on behalf of such Selling
Shareholder.
(b) No Conflicts. The execution,
delivery and performance by such Selling Shareholder of this Agreement, the
Power of Attorney and the Custody Agreement, the sale of the Offered Shares to
be sold by such Selling Shareholder and the consummation by such Selling
Shareholder of the transactions contemplated herein or therein will not
(i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
such Selling Shareholder pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder is bound or to which
any of the property or assets of such Selling Shareholder is subject, (ii)
result in any violation of the provisions of the charter or by-laws or similar
organizational documents of such Selling Shareholder, or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority except in the
cases of clauses (i) and (iii) as would not individually or in the aggregate
have a Selling Shareholder Material Adverse Effect.
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(c) Title to Offered
Shares. Such Selling Shareholder has good and valid title to
the Offered Shares to be sold at the Closing Date or the Additional Closing
Date, as the case may be, by such Selling Shareholder hereunder, free and clear
of all liens, encumbrances, equities or adverse claims; such Selling Shareholder
will have, immediately prior to the Closing Date or the Additional Closing Date,
as the case may be, good and valid title to the Offered Shares to be sold at the
Closing Date or the Additional Closing Date, as the case may be, by such Selling
Shareholder, free and clear of all liens, encumbrances, equities or adverse
claims; and, upon delivery of the certificates representing such Offered Shares
and payment therefor pursuant hereto, good and valid title to such Offered
Shares, free and clear of all liens, encumbrances, equities or adverse claims,
will pass to the several Underwriters.
(d) No
Stabilization. Such Selling Shareholder has not taken and will
not take, directly or indirectly, any action designed to or that would
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Offered Shares .
(e) Pricing Disclosure
Package. The Pricing Disclosure Package, at the Applicable
Time did not, and as of the Closing Date and as of the Additional Closing Date,
as the case may be, will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the representations and
warranties set forth in this paragraph are limited to statements or omissions
made in reliance upon and in conformity with information relating to such
Selling Shareholder furnished to the Company in writing by such Selling
Shareholder expressly for use in the Registration Statement, the Pricing
Disclosure Package or the Prospectus, it being understood and agreed that the
only such information furnished by each Selling Shareholder consists of the
statements with respect to such Selling Shareholder under the caption “Principal
and Selling Shareholders.”
(f) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, such Selling Shareholder (including
its agents and representatives, other than the Underwriters in their capacity as
such) has not prepared, used, authorized, approved or referred to and will not
prepare, use, authorize, approve or refer to any Issuer Free Writing Prospectus,
other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii)
the documents listed on Annex D hereto, each electronic road show and any other
written communications approved in writing in advance by the Company and the
Representatives.
(g) Registration Statement and
Prospectus. As of the applicable effective date of the
Registration Statement and any post-effective amendment thereto, the
Registration Statement and any such post-effective amendment complied and will
comply in all material respects with the Securities Act, and did not and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading; and as of the date of the Prospectus and any amendment
or supplement thereto and as of the Closing Date and as of the Additional
Closing Date, as the case may be, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the representations and warranties set forth in this paragraph are limited
to statements or omissions made in reliance upon and in conformity with
information relating to such Selling Shareholder furnished to the Company in
writing by such Selling Shareholder expressly for use in the Registration
Statement, the Pricing Disclosure Package or the Prospectus, it being understood
and agreed that the only such information furnished by each Selling Shareholder
consists of the statements with respect to such Selling Shareholder under the
caption “Principal and Selling Shareholders.”
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(h) Material
Information. As of the date hereof, as of the Closing Date and
as of the Additional Closing Date, as the case may be, that the sale of the
Offered Shares by such Selling Shareholder is not and will not be prompted by
any material information concerning the Company which is not set forth in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus.
Each of
the Selling Shareholders represents and warrants that certificates in negotiable
form representing all of the Offered Shares to be sold by such Selling
Shareholders hereunder, , with respect to all of the Shares to be sold by such
Selling Shareholders hereunder have been, placed in custody under a Custody
Agreement relating to such Offered Shares, in the form heretofore furnished to
you, duly executed and delivered by such Selling Shareholder to SodaStream
International Ltd., as custodian (the “Custodian”), and that such Selling
Shareholder has duly executed and delivered Powers of Attorney, in the form
heretofore furnished to you, appointing the person or persons indicated in
Schedule 2 hereto, and each of them, as such Selling Shareholder’s
Attorneys-in-fact (the “Attorneys-in-Fact” or any one of them the “Attorney-in
Fact”) with authority to execute and deliver this Agreement on behalf of such
Selling Shareholder, to determine the purchase price to be paid by the
Underwriters to the Selling Shareholders as provided herein, to authorize the
delivery of the Offered Shares to be sold by such Selling Shareholder hereunder
and otherwise to act on behalf of such Selling Shareholder in connection with
the transactions contemplated by this Agreement and the Custody
Agreement.
Each of
the Selling Shareholders specifically agrees that the Offered Shares represented
by the certificates held in custody for such Selling Shareholder under the
Custody Agreement, are subject to the interests of the Underwriters hereunder,
and that the arrangements made by such Selling Shareholder for such custody, and
the appointment by such Selling Shareholder of the Attorneys-in-Fact by the
Power of Attorney, are to that extent irrevocable. Each of the
Selling Shareholders specifically agrees that the obligations of such Selling
Shareholder hereunder shall not be terminated by operation of law, whether by
the death or incapacity of any individual Selling Shareholder, or, in the case
of an estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership,
corporation or similar organization, by the dissolution of such partnership,
corporation or organization, or by the occurrence of any other
event. If any individual Selling Shareholder or any such executor or
trustee should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership, corporation or similar
organization should be dissolved, or if any other such event should occur,
before the delivery of the Offered Shares hereunder, certificates representing
such Offered Shares shall be delivered by or on behalf of such Selling
Shareholder in accordance with the terms and conditions of this Agreement and
the Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to
the Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless of whether
or not the Custodian, the Attorneys-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination, dissolution or other
event.
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5. Further Agreements of the
Company. The Company covenants and agrees with each
Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B
or 430C under the Securities Act, will file any Issuer Free Writing Prospectus
to the extent required by Rule 433 under the Securities Act; and will
furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the
extent not previously delivered) to the Underwriters in New York City prior to
10:00 A.M., New York City time, on the business day next succeeding the date of
this Agreement in such quantities as the Representatives may reasonably
request.
(b) Delivery of
Copies. The Company will deliver, without charge, (i) to the
Representatives, three signed copies of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and
consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of
the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period (as defined
below), as many copies of the Prospectus (including all amendments and
supplements thereto and each Issuer Free Writing Prospectus) as the
Representatives may reasonably request. As used herein, the term
“Prospectus Delivery Period” means such period of time after the first date of
the public offering of the Offered Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Offered Shares is required by law to
be delivered (or required to be delivered but for Rule 172 under the Securities
Act) in connection with sales of the Offered Shares by any Underwriter or
dealer.
(c) Amendments or Supplements, Issuer
Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, the Company will furnish to the Representatives and
counsel for the Underwriters a copy of the proposed Issuer Free Writing
Prospectus, amendment or supplement for review and will not prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or
file any such proposed amendment or supplement to which the Representatives
reasonably object.
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(d) Notice to the
Representatives. The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when the Registration
Statement has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission for any additional
information; (v) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use
of any Preliminary Prospectus, any of the Pricing Disclosure Package or the
Prospectus or the initiation or, to the knowledge of the Company, threatening of
any proceeding for that purpose or pursuant to Section 8A of the Securities Act;
(vi) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Pricing Disclosure Package or any Issuer
Free Writing Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing when
the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; and (vii) of the receipt
by the Company of any notice with respect to any suspension of the qualification
of the Offered Shares for offer and sale in any jurisdiction or the initiation
or, to the knowledge of the Company, threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus, any
of the Pricing Disclosure Package or the Prospectus or suspending any such
qualification of the Offered Shares and, if any such order is issued, the
Company will use its reasonable best efforts to obtain as soon as possible the
withdrawal thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i)
any event shall occur or condition shall exist as a result of which the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to paragraph (c) above, file with the Commission and furnish to the Underwriters
and to such dealers as the Representatives may designate such amendments or
supplements to the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law and (2) if at any time
prior to the Closing Date (i) any event shall occur or condition shall exist as
a result of which the Pricing Disclosure Package as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances existing when the Pricing Disclosure Package is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the
Pricing Disclosure Package to comply with law, the Company will immediately
notify the Underwriters thereof and forthwith prepare and, subject to paragraph
(c) above, file with the Commission (to the extent required) and furnish to the
Underwriters and to such dealers as the Representatives may designate such
amendments or supplements to the Pricing Disclosure Package as may be necessary
so that the statements in the Pricing Disclosure Package as so amended or
supplemented will not, in the light of the circumstances existing when the
Pricing Disclosure Package is delivered to a purchaser, be misleading or so that
the Pricing Disclosure Package will comply with law.
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(f) Blue Sky
Compliance. The Company will qualify the Offered Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Representatives shall reasonably request and will continue such
qualifications in effect so long as required for distribution of the Offered
Shares; provided that the
Company shall not be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not
otherwise be required to so qualify, (ii) file any general consent to service of
process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning
Statement. The Company will make generally available to its
security holders and the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For
a period of 180 days after the date of the Prospectus, the Company will not (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, or file
with the Commission a registration statement under the Securities Act relating
to, any Shares or any securities convertible into or exercisable or exchangeable
for Shares, or publicly disclose the intention to make any offer, sale, pledge,
disposition or filing, or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Shares or any such other securities, whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of Shares or such other
securities, in cash or otherwise, without the prior written consent of X.X.
Xxxxxx Securities LLC and Deutsche Bank Securities Inc., other than (A) the
Offered Shares to be sold hereunder, (B) any Shares of the Company issued upon
the exercise of options granted under Company Stock Plans, (C) the grant or
issuance by the Company of employee, consultant, or director stock options or
restricted stock in the ordinary course of business under Company Stock Plans,
(D) the issuance of securities in connection with the acquisition by the Company
or any of its subsidiaries of the securities, businesses, property or other
assets of another person or entity or pursuant to any employee benefit plan
assumed by the Company in connection with any such acquisition, (E) the issuance
of securities in connection with joint ventures, commercial relationships, or
other strategic transactions; provided that, in the case of clauses (D) and (E),
(1) the aggregate number of shares issued in all such acquisitions and
transactions does not exceed 5% of the Company’s outstanding ordinary shares
following the offering of the Offered Shares contemplated by this Agreement and
(2) each person to whom such shares are issued executes a “lock-up” agreement in
the form of Exhibit A hereto, or (F) any Shares otherwise transferred or
disposed of by the Company during the 180-day restricted period with the advance
written consent of the Representatives. Notwithstanding the
foregoing, if (1) during the last 17 days of the 180-day restricted period, the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of the 180-day restricted
period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 180-day period, the restrictions
imposed by this Agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event.
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(i) Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Offered Shares as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus under the heading “Use of
Proceeds”.
(j) No
Stabilization. The Company will not take, directly or
indirectly, any action designed to or that would reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Shares.
(k) Exchange
Listing. The Company will use its reasonable best efforts to
list the Offered Shares for quotation on the Nasdaq Stock Market.
(l) Reports. So long
as the Offered Shares are outstanding, the Company will furnish to the
Representatives, as soon as they are available, copies of all reports or other
communications (financial or other) furnished to holders of the Offered Shares,
and copies of any reports and financial statements furnished to or filed with
the Commission or any national securities exchange or automatic quotation
system; provided the Company
will be deemed to have furnished such reports and financial statements to the
Representatives to the extent they are filed on the Commission’s Electronic Data
Gathering, Analysis, and Retrieval system.
(m) Record
Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
(n) Filings. The
Company will file with the Commission such reports as may be required by Rule
463 under the Securities Act.
(o) Directed Share
Program. The Company will comply in all material respects with
all applicable securities and other laws, rules and regulations in each
jurisdiction in which the Directed Shares are offered in connection with the
Directed Share Program
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6. Further Agreements of the
Selling Shareholders. Each of the Selling Shareholders
covenants and agrees with each Underwriter that:
(a) Clear Market. It
has executed and delivered to the Representatives a lock-up agreement in the
form of Exhibit A unless as otherwise agreed with the
Representatives.
(b) Taxes. It will,
severally and not jointly, indemnify and hold harmless the Underwriters against
any documentary, stamp or similar issue tax, including any interest and
penalties, on the sale of the Offered Shares by such Selling Shareholder and on
the execution and delivery of this Agreement. All payments to be made by any
Selling Shareholder hereunder shall be made without withholding or deduction for
or on account of any present or future taxes, duties or governmental charges
whatsoever unless such Selling Shareholder or the Company is compelled by law to
deduct or withhold such taxes, duties or charges. In that event, such Selling
Shareholder shall pay such additional amounts as may be necessary in order that
the net amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction had been
made.
(c) Tax Form. It will
deliver to the Representatives prior to or at the Closing Date a properly
completed and executed United States Treasury Department Form W-8 or W-9 (or
other applicable form or statement specified by the Treasury Department
regulations in lieu thereof) in order to facilitate the Underwriters’
documentation of their compliance with the reporting and withholding provisions
of the Tax Equity and Fiscal Responsibility Act of 1982 with respect to the
transactions herein contemplated.
7. Certain Agreements of the
Underwriters. Each Underwriter hereby represents and agrees
that:
(a) It
has not used, authorized use of, referred to or participated in the planning for
use of, and will not use, authorize use of, refer to or participate in the
planning for use of, any “free writing prospectus”, as defined in Rule 405 under
the Securities Act (which term includes use of any written information furnished
to the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including
through incorporation by reference) in the Preliminary Prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Annex D or prepared pursuant to Section 3(c) or Section
4(c) above (including any electronic road show), or (iii) any free writing
prospectus prepared by such underwriter and approved by the Company in advance
in writing (each such free writing prospectus referred to in clauses (i) or
(iii), an “Underwriter Free Writing Prospectus”).
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(b) It
has not and will not, without the prior written consent of the Company, use any
free writing prospectus that contains the final terms of the Offered Shares
unless such terms have previously been included in a free writing prospectus
filed with the Commission; provided that Underwriters
may use a term sheet substantially in the form of Annex D hereto without the
consent of the Company; provided further that any
Underwriter using such term sheet shall notify the Company, and provide a copy
of such term sheet to the Company, prior to, or substantially concurrently with,
the first use of such term sheet.
(c) It
is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company and the
Selling Shareholders if any such proceeding against it is initiated during the
Prospectus Delivery Period).
(d) Other
than as set forth in the next paragraph, it will not offer any Shares to
offerees in Israel, other than to Institutional Investors (mashki’im mosdiem),
as such term is defined in the Israel Securities Law, and only subject to the
prior written consent of the Company.
The Company and the Selling
Shareholders acknowledge, understand and agree that Shares may be sold in Israel
only by the Underwriters and only to such Israeli investors listed in the First
Addendum to the Israeli Securities Law (“Addendum”) and to certain other
investors who are not institutional investors in such number as shall be exempt
from prospectus requirements under the Israeli Securities Law; all of whom are
to be specifically identified and approved by the Underwriters, and provided
further that as a prerequisite to sale of Shares by the Underwriters to such
Israeli investors, each of them shall be required to submit written confirmation
to the Underwriters and the Company that such investor (i) falls within the
scope of the Addendum; and (ii) is acquiring the Shares being offered to it
for investment for its own account or, if applicable, for investment for clients
who are institutional investors and in any event not as a nominee, market maker
or agent and not with a view to, or for the resale in connection with, any
distribution thereof. Company and Selling Shareholders acknowledge and agree
that any failure of the Company to comply with the above procedure may result in
a default under Israeli Securities Law.
8. Conditions of Underwriters’
Obligations. The obligation of each Underwriter to purchase
the Underwritten Shares on the Closing Date or the Option Shares on the
Additional Closing Date, as the case may be, as provided herein is subject to
the performance by the Company and each of the Selling Shareholders of their
respective covenants and other obligations hereunder and to the following
additional conditions:
(a) Registration Compliance; No Stop
Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose or
pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer Free Writing
Prospectus shall have been timely filed with the Commission under the Securities
Act (in the case of an Issuer Free Writing Prospectus, to the extent required by
Rule 433 under the Securities Act) and in accordance with Section 5(a) hereof;
and all requests by the Commission for additional information shall have been
complied with to the reasonable satisfaction of the
Representatives.
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(b) Representations and
Warranties. The respective representations and warranties of
the Company and the Selling Shareholders contained herein shall be true and
correct on the date hereof and on and as of the Closing Date or the Additional
Closing Date, as the case may be; and the statements of the Company and its
officers and of each of the Selling Shareholders and their officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date or the Additional Closing Date as the case may
be.
(c) No
Downgrade. Subsequent to the earlier of (A) the Applicable
Time and (B) the execution and delivery of this Agreement, if there are any debt
securities or preferred stock of, or guaranteed by, the Company or any of its
subsidiaries that are rated by a “nationally recognized statistical rating
organization,” as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in
the rating accorded any such debt securities or preferred stock and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of any such debt
securities or preferred stock (other than an announcement with positive
implications of a possible upgrading).
(d) No Material Adverse
Change. No event or condition of a type described in Section
3(g) hereof shall have occurred or shall exist, which event or condition is not
described in the Pricing Disclosure Package (excluding any amendment or
supplement thereto) and the Prospectus (excluding any amendment or supplement
thereto) and the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Offered Shares on the Closing Date or the Additional Closing Date, as the
case may be, on the terms and in the manner contemplated by this Agreement, the
Pricing Disclosure Package and the Prospectus.
(e) Officer’s
Certificate. The Representatives shall have received on and as
of the Closing Date or the Additional Closing Date, as the case may be, (x) a
certificate of the chief financial officer or chief accounting officer of the
Company and one additional senior executive officer of the Company who is
satisfactory to the Representatives (i) confirming that such officers have
carefully reviewed the Registration Statement, the Pricing Disclosure Package
and the Prospectus and, to the best knowledge of such officers, the
representations of the Company set forth in Sections 3(b) and 3(d) hereof are
true and correct, (ii) confirming that the other representations and warranties
of the Company in this Agreement are true and correct and that the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date or the
Additional Closing Date, as the case may be, and (iii) to the effect set forth
in paragraphs (a), (c) and (d) above and (y) a certificate of each of the
Selling Shareholders, in form and substance reasonably satisfactory to the
Representatives, (i) confirming that the representations of such Selling
Shareholder set forth in Sections 4(e), 4(f) and 4(g) hereof is true and correct
and (ii) confirming that the other representations and warranties of such
Selling Shareholder in this agreement are true and correct and that the such
Selling Shareholder has complied with all agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to
such Closing Date.
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(f) Comfort
Letters. On the date of this Agreement and on the Closing Date
or the Additional Closing Date, as the case may be, Somekh Xxxxxxx shall have
furnished to the Representatives, at the request of the Company, letters, dated
the respective dates of delivery thereof and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Representatives, containing
statements and information of the type customarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement, the
Pricing Disclosure Package and the Prospectus; provided, that the letter
delivered on the Closing Date or the Additional Closing Date, as the case may
be, shall use a “cut-off” date no more than three business days prior to such
Closing Date.
(g) Opinion and 10b-5 Statement of U.S.
Counsel for the Company. Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, U.S. counsel for the Company, shall have furnished to the Representatives,
at the request of the Company, their written opinion and 10b-5 statement, dated
the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to
the Representatives, to the effect set forth in Annex A hereto.
(h) Opinion and 10b-5 Statement of
Israeli Counsel for the Company. Gornitzky & Co., Israeli
counsel for the Company, shall have furnished to the Representatives, at the
request of the Company, their written opinion and 10b-5 statement, dated the
Closing Date or the Additional Closing Date, as the case may be, and addressed
to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex B hereto.
(i) Opinion of Counsel for the Selling
Shareholders. Local counsel for each of the Selling Shareholders, shall
have furnished to the Representatives, at the request of the Selling
Shareholders, their written opinion, dated the Closing Date or the Additional
Closing Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Annex C hereto.
(j) Opinion and 10b-5 Statement of U.S.
Counsel for the Underwriters. The Representatives shall have
received on and as of the Closing Date or the Additional Closing Date, as the
case may be, an opinion and 10b-5 statement of White & Case LLP, U.S.
counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
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(k) No Legal Impediment to Issuance
and/or Sale. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Offered Shares by the Company or the sale of the Offered
Shares by the Selling Shareholders; and no injunction or order of any federal,
state or foreign court shall have been issued that would, as of the Closing Date
or the Additional Closing Date, as the case may be, prevent the issuance or sale
of the Offered Shares by the Company or the sale of the Offered Shares by the
Selling Shareholders.
(l) Good Standing. The
Representatives shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, satisfactory evidence of the good
standing, where such concept is applicable, of the Company and its significant
subsidiaries in their respective jurisdictions of organization and their good
standing as foreign entities in such other jurisdictions as the Representatives
may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such
jurisdictions.
(m) Exchange
Listing. The Offered Shares to be delivered on the Closing
Date or the Additional Closing Date, as the case may be, shall have been
approved for listing on the Nasdaq Stock Market, subject to official notice of
issuance.
(n) Lock-up
Agreements. The “lock-up” agreements, each substantially in
the form of Exhibit A hereto, between you and certain shareholders, officers and
directors of the Company relating to sales and certain other dispositions of
Shares or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date or the Additional
Closing Date, as the case may be.
(o) Additional
Documents. On or prior to the Closing Date or the Additional
Closing Date, as the case may be, the Company and the Selling Shareholders shall
have furnished to the Representatives such further certificates and documents as
the Representatives may reasonably request.
All
opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
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9. Indemnification and
Contribution.
(a) Indemnification of the Underwriters
by the Company. The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other reasonable expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of, or are based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, not misleading, (ii) or any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing
Disclosure Package that has subsequently been amended), or caused by any
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representatives expressly for
use therein it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below.
(b) Indemnification of the Underwriters
by the Selling Shareholders. Each of the Selling Shareholders
severally and not jointly in proportion to the number of Offered Shares to be
sold by such Selling Shareholder hereunder agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if
any, who controls such Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto), any Issuer Free Writing Prospectus or
any Applicable Time Information, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information
described as such in subsection (c) below. Irrespective of the
foregoing, a Selling Shareholder will only be liable in any case to the extent,
but only to the extent, that any such loss, claim, damage or liability arises
out of, or is based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
furnished to the Company in writing by such Selling Shareholder expressly for
use in the Registration Statement, the Prospectus (or any amendment or
supplement thereto), any Issuer Free Writing Prospectus or any Pricing
Disclosure Package, it being understood that the only such information furnished
by each Selling Shareholder consists of the statements contained with respect to
such Selling Shareholder under the caption “Principal and Selling
Shareholders”.
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(c) Indemnification of the Company and
the Selling Shareholders. Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of the Selling Shareholders to the same
extent as the indemnity set forth in paragraph (a) above, but only with respect
to any losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus
(or any amendment or supplement thereto), any Issuer Free Writing Prospectus or
any Pricing Disclosure Package, it being understood and agreed upon that the
only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the third paragraph under the
caption “Underwriting,” the information contained in the twelfth, thirteenth and
fourteenth paragraphs relating to stabilization transactions under the caption
“Underwriting.”
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(d) Notice and Procedures.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnification may be sought pursuant the preceding
paragraphs of this Section 9 such person (the “Indemnified Person”) shall
promptly notify the person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under the preceding paragraphs of this Section 9
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under the
preceding paragraphs of this Section 9. If any such proceeding shall be
brought or asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the
consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interest between them. It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall be paid or
reimbursed as they are incurred. Any such separate firm for any
Underwriter, its affiliates, directors and officers and any control persons of
such Underwriter shall be designated in writing by the Representatives, any such
separate firm for the Company, its directors, its officers who signed the
Registration Statement and any control persons of the Company shall be
designated in writing by the Company and any such separate firm for the Selling
Shareholders shall be designated in writing by the Attorneys-in-Fact or any one
of them. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by this paragraph, the Indemnifying Person
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (x)
includes an unconditional release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (y) does not
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
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(e) Contribution. If the
indemnification provided for in paragraphs (a), (b) and (c) above is unavailable
to an Indemnified Person or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person thereunder,
shall contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders, on the one hand, and the Underwriters on the other, from
the offering of the Offered Shares, or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company and the Selling Shareholders, on the one hand, and
the Underwriters on the other, in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Selling Shareholders, on the one hand, and the Underwriters
on the other, shall be deemed to be in the same respective proportions as the
net proceeds (before deducting expenses) received by the Company and the Selling
Shareholders from the sale of the Offered Shares and the total underwriting
discounts and commissions received by the Underwriters in connection therewith,
in each case as set forth in the table on the cover of the Prospectus, bear to
the aggregate offering price of the Offered Shares. The relative fault of
the Company and the Selling Shareholders, on the one hand, and the Underwriters
on the other, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Selling Shareholders or by the Underwriters and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(f)
Limitation
on Liability. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even
if the Selling Shareholders or the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (e) above. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (e) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 9, in no
event shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Offered Shares exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute pursuant to
this Section 9 are several in proportion to their respective purchase
obligations hereunder and not joint. The Selling Shareholders’ respective
obligations to contribute pursuant to this Section 9 are several and not
joint.
(g) Non-Exclusive Remedies.
The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity. Without limiting the generality of
the foregoing, the provisions of this Section 9 shall not affect any agreement
among the Company and the Selling Shareholders with respect to indemnification
and contribution.
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(h) Limitation of Selling Shareholder
Liability. Notwithstanding anything in this Section 9 to the
contrary, no Selling Shareholder shall be liable or responsible pursuant to this
Section 9 for any amount in excess of the gross proceeds received by such
Selling Shareholder from the sale of Offered Shares by such Selling Shareholder
pursuant to the transactions contemplated hereby.
10.
Directed Share Program
Indemnification and Contribution.
(a) Indemnification of the Designated
Underwriter Entities by the Company. The Company agrees to
indemnify and hold harmless the Designated Underwriter, each person, if any, who
controls the Designated Underwriter within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and each affiliate
of the Designated Underwriter within the meaning of Rule 405 of the
Securities Act (“Designated Underwriter Entities”) from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement
or alleged untrue statement of a material fact contained in any material
prepared by or with the consent of the Company for distribution to Participants
in connection with the Directed Share Program or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out
of, or in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
Designated Underwriter Entities.
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(b) Notice and Procedures for Directed
Share Program Indemnification. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be bought or asserted against any Designated Underwriter Entity in respect of
which indemnification may be sought pursuant to the preceding paragraphs of this
Section 10, such Designated Underwriter Entity shall promptly notify the Company
against whom such indemnification may be sought in writing; provided that the
failure to notify the Company shall not relieve it from any liability that it
may have under the preceding paragraphs of this Section 10 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the
failure to notify the Company shall not relieve it from any liability that it
may have to a Designated Underwriter Entity otherwise than under the preceding
paragraphs of this Section 10. If any such proceeding shall be brought or
asserted against a Designated Underwriter Entity and it shall have notified the
Company thereof, the Company shall retain counsel reasonably satisfactory to the
Designated Underwriter Entity (who shall not, without the consent of the
Designed Underwriter Entity, be counsel to the Company) to represent
the Designated Underwriter Entity in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In any
such proceeding, any Designated Underwriter Entity shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Designated Underwriter Entity unless (i) the Company and the
Designated Underwriter Entity shall have mutually agreed to the contrary; (ii)
the Company has failed within a reasonable time to retain counsel reasonably
satisfactory to the Designated Underwriter Entity; (iii) the Designated
Underwriter Entity shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Company; or (iv) the named parties to any such proceeding
(including any impleaded parties) include both the Company and the Designated
Underwriter Entity and the Designated Underwriter and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood and agreed that the Company
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Designated Underwriter Entities, and
that all such fees and expenses shall be paid or reimbursed as they are
incurred. Any such separate firm for the Designated Underwriter Entities, its
affiliates, directors and officers and any control persons of such Designated
Underwriter Entity shall be designated in writing by the Designated Underwriter
Entity and any such separate firm for the Company shall be designated in writing
by the Company. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Company agrees to
indemnify each Designated Underwriter Entity from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time a Designated Underwriter Entity shall have
requested that the Company reimburse the Designated Underwriter Entity for fees
and expenses of counsel as contemplated by this paragraph, the Company shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by the
Company of such request and (ii) the Company shall not have reimbursed the
Designated Underwriter Entity in accordance with such request prior to the date
of such settlement. The Company shall, without the written consent of the
Designated Underwriter Entity, effect any settlement of any pending or
threatened proceeding in respect of which any Designated Underwriter Entity is
or could have been a party and indemnification could have been sought hereunder
by such Designated Underwriter Entity, unless such settlement (x) includes an
unconditional release of such Designated Underwriter Entity, in form
and substance reasonably satisfactory to such Designated Underwriter
Entity, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Designated
Underwriter Entity.
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(c) Contribution for Directed Share
Program Indemnification. To the extent the indemnification provided for
in Section 10(a) is unavailable to a Designated Underwriter Entity or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the Company in lieu of indemnifying the Designated Underwriter
Entity thereunder, shall contribute to the amount paid or payable by the
Designated Underwriter Entity as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Designated
Underwriter Entities on the other hand from the offering of the Directed Shares
or (ii) if the allocation provided by clause 10(c)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 10(c)(i) above but also the
relative fault of the Company on the one hand and of the Designated Underwriter
Entities on the other hand in connection with any statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Designated Underwriter Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Directed Shares (before deducting expenses) and the total underwriting discounts
and commissions received by the Designated Underwriter Entities for the Directed
Shares, bear to the aggregate Public Offering Price of the Directed Shares. If
the loss, claim, damage or liability is caused by an untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact, the relative fault of the Company on the one hand and the
Designated Underwriter Entities on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
or the omission or alleged omission relates to information supplied by the
Company or by the Designated Underwriter Entities and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(d) Limitation on Liability for Directed
Share Program. The Company and the Designated Underwriter Entities
agree that it would not be just or equitable if contribution pursuant to this
Section 10 were determined by pro rata allocation (even if
the Designated Underwriter Entities were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 10(c). The amount paid or payable by the
Designated Underwriter Entities as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by the Designated Underwriter Entities in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, in no event shall a
Designated Underwriter Entity be required to contribute any amount in excess of
the amount by which the total underwriting discounts and commissions received by
such Designated Underwriter Entity with respect to the offering of the Directed
Shares exceeds the amount of any damages that such Designated Underwriter Entity
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The remedies provided for in this
Section 10 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(e) Survival. The indemnity and
contribution provisions contained in this Section 10 shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Designated
Underwriter Entity or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Directed Shares,
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11.
Effectiveness of
Agreement. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
12.
Termination.
(a) Termination; General.
This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company and the Selling Shareholders, if after
the execution and delivery of this Agreement and prior to the Closing Date or in
the case of the Option Shares, prior to the Additional Closing Date (i) trading
generally shall have been suspended or materially limited on or by any of the
New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade; (ii) trading of any securities issued or guaranteed by
the Company shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall
have been declared by federal or New York State authorities; or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Representatives, is material and adverse
and makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Offered Shares on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated by this
Agreement, the Pricing Disclosure Package and the Prospectus.
(b) Lock-up Agreement Termination.
If this Agreement is terminated for any reason, the lock-up agreements
referred to in Section 6(m) shall be automatically terminated contemporaneously
with the termination hereof.
13.
Defaulting
Underwriter.
(a) If,
on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Offered Shares that it
has agreed to purchase hereunder on such date, the non-defaulting Underwriters
may in their discretion arrange for the purchase of such Offered Shares by other
persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter,
the non-defaulting Underwriters do not arrange for the purchase of such Offered
Shares, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such Offered Shares on such terms. If other
persons become obligated or agree to purchase the Offered Shares of a defaulting
Underwriter, either the non-defaulting Underwriters or the Company may postpone
the Closing Date or the Additional Closing Date, as the case may be, for up to
five full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or
arrangement, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any
such changes. As used in this Agreement, the term “Underwriter” includes,
for all purposes of this Agreement unless the context otherwise requires, any
person not listed in Schedule 1 hereto that, pursuant to this Section 13,
purchases Offered Shares that a defaulting Underwriter agreed but failed to
purchase.
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(b) If,
after giving effect to any arrangements for the purchase of the Offered Shares
of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters,
the Company as provided in paragraph (a) above, the aggregate number of Offered
Shares that remain unpurchased on the Closing Date or the Additional Closing
Date, as the case may be, does not exceed one eleventh of the aggregate number
of Offered Shares to be purchased on such date, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Offered Shares that such Underwriter agreed to purchase hereunder on such date
plus such Underwriter’s pro rata share (based on the number of Offered Shares
that such Underwriter agreed to purchase on such date) of the Offered Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made.
(c) If,
after giving effect to any arrangements for the purchase of the Offered Shares
of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters,
the Company as provided in paragraph (a) above, the aggregate number of Offered
Shares that remain unpurchased on the Closing Date or the Additional Closing
Date, as the case may be, exceeds one eleventh of the aggregate amount of
Offered Shares to be purchased on such date, or if the Company shall not
exercise the right described in paragraph (b) above, then this Agreement or,
with respect to any Additional Closing Date, the obligation of the Underwriters
to purchase Offered Shares on the Additional Closing Date shall terminate
without liability on the part of the non-defaulting Underwriters. Any
termination of this Agreement pursuant to this Section 13 shall be without
liability on the part of the Company, except that the Company will continue to
be liable for the payment of expenses as set forth in Section 14 hereof and
except that the provisions of Section 9 hereof shall not terminate and shall
remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Selling Shareholders or any non-defaulting Underwriter
for damages caused by its default.
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14.
Payment of
Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and the Selling Shareholders will pay or
cause to be paid all costs and expenses actually incurred and incident to the
performance of each of their respective obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Offered Shares and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package
and the Prospectus (including all exhibits, amendments and supplements thereto)
and the distribution thereof; (iii) the fees and expenses of the Company’s
counsel and independent accountants; (v) the fees and expenses incurred in
connection with the registration or qualification and determination of
eligibility for investment of the Offered Shares under the state or foreign
securities or blue sky laws of such jurisdictions as the Representatives may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum and Canadian “wrapper” (including the related reasonable fees and
expenses of counsel for the Underwriters); (vi) the cost of preparing stock
certificates; (vii) the costs and charges of any transfer agent and any
registrar; (viii) all expenses and application fees incurred in connection with
any filing with, and clearance of the offering by, FINRA; (ix) all expenses
incurred by the Company in connection with any “road show” presentation to
potential investors; (x) all expenses and application fees related to the
listing of the Offered Shares on the Nasdaq Stock Market, and (xi) all
reasonable fees and disbursements of counsel incurred by the Underwriters in
connection with the Directed Share Program and stamp duties, similar taxes or
duties or other taxes, if any, incurred by the Underwriters in connection with
the Directed Share Program. It is understood, however, that except as
provided in this Section 14 and of Section 9 hereof, the Underwriters will pay
all of their own costs and expenses, including the fees of their counsel, stock
transfer taxes on the resale of any of the Shares owned by them, any advertising
expenses connected with any offers they may make and all travel, lodging and
other expenses of the Underwriters or any of their employees incurred by them in
connection with the road show. Notwithstanding the foregoing, the Selling
Shareholders shall pay the fees and expenses of their counsel (other than the
fees and expenses of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Gornitzky &
Co., to the extent such firms provide any opinions on behalf of the selling
shareholders, which shall be paid by the Company) and any other advisers they
engage, as well as all underwriting discounts, selling commissions and transfer
taxes payable in connection with their respective sales of the Offered Shares to
the Underwriters.
(b) If
(i) this Agreement is terminated pursuant to Section 12, (ii) the Company or the
Selling Shareholders for any reason fail to tender the Offered Shares for
delivery to the Underwriters or (iii) the Underwriters decline to purchase the
Offered Shares for any reason permitted under this Agreement, the Company and
the Selling Shareholders agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
15.
Persons Entitled to Benefit
of Agreement. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 9 hereof.
Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of Offered
Shares from any Underwriter shall be deemed to be a successor merely by reason
of such purchase.
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16.
Survival. The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company, the Selling Shareholders and the Underwriters
contained in this Agreement or made by or on behalf of the Company, the Selling
Shareholders or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the
Offered Shares and shall remain in full force and effect, regardless of any
termination of this Agreement or any investigation made by or on behalf of the
Company, the Selling Shareholders or the Underwriters.
17.
Certain Defined
Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405
under the Securities Act; (b) the term “business day” means any day other than a
day on which banks are permitted or required to be closed in New York City; (c)
the term “subsidiary” has the meaning set forth in Rule 405 under the Securities
Act ; and (d) the term “significant subsidiary” has the meaning set forth in
Rule 1-02 of Regulation S-X under the Exchange Act.
18.
Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities
LLC and Deutsche Bank Securities Inc. Any action by the
Underwriters hereunder may be taken by X.X. Xxxxxx Securities LLC and Deutsche
Bank Securities Inc. on behalf of the Underwriters, and any such action taken by
X.X. Xxxxxx Securities LLC or Deutsche Bank Securities Inc. shall be binding
upon the Underwriters.
(b) Notices. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted and confirmed by any standard form
of telecommunication. Notices to the Underwriters shall be given to the
Representatives c/o X.X. Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (fax: (000) 000-0000); Attention Equity Syndicate
Desk. Notices to the Company shall be given to it at SodaStream
International Ltd., Gilboa Street, Airport City, Xxx Xxxxxx Xxxxxxx 00000,
Xxxxxx (fax: 000-000-0-000-0000); Attention: Chief Financial Officer.
Notices to the Selling Shareholders shall be given to the Attorneys-in-Fact c/o
SodaStream International Ltd., Gilboa Street, Airport City, Xxx Xxxxxx Xxxxxxx
00000, Xxxxxx (fax: 000-000-0-000-0000); Attention: General
Counsel.
(c) Governing Law. This
Agreement and any claim, controversy or dispute arising under or related to this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in such
state.
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(d) Agent for Service; Submission to
Jurisdiction; Waiver of Immunities. The Company and each Selling
Shareholder not located in the United States (each, a “Non-U.S. Selling
Shareholder”) hereby irrevocably designates and appoints SodaStream USA, Inc. as
the authorized agent of the Company and such Non-U.S. Selling Shareholders upon
whom process may be served in any suit, proceeding or other action against the
Company or any non-U.S. Selling Shareholder instituted by any Underwriter or by
any person controlling an Underwriter as to which such Underwriter or any such
controlling person is a party and based upon this Agreement, or in any other
action against the Company or a non-U.S. Selling Shareholders in any federal or
state court sitting in the County of New York, arising out of the offering made
by the Prospectus or any purchase or sale of Offered Shares in connection
therewith. The Company and each Selling Shareholder expressly accepts
jurisdiction of any such court in respect of any such suit, proceeding or other
action and, without limiting other methods of obtaining jurisdiction, expressly
submits to nonexclusive personal jurisdiction of any such court in respect of
any such suit, proceeding or other action. Such designation and appointment
shall be irrevocable, unless and until a successor authorized agent in the
County and State of New York reasonably acceptable to the Underwriters shall
have been appointed by the Company or the Selling Shareholders, such successor
shall have accepted such appointment and written notice thereof shall have been
given to the Underwriters. The Company and each Selling Shareholder further
agrees that service of process upon their authorized agent or successor shall be
deemed in every respect personal service of process upon the Company and such
Selling Shareholder in any such suit, proceeding or other action. In the event
that service of any process or notice of motion or other application to any such
court in connection with any such motion in connection with any such action or
proceeding cannot be made in the manner described above, such service may be
made in the manner set forth in conformance with the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents on Civil and Commercial
Matters or any successor convention or treaty. The Company and each Selling
Shareholder hereby irrevocably waives any objection that it may have or
hereafter have to the laying of venue of any such action or proceeding arising
out of or based on the Offered Shares, or this Agreement or otherwise relating
to the offering, issuance and sale of the Offered Shares in any Federal or state
court sitting in the County of New York and hereby further irrevocably waives
any claim that any such action or proceeding in any such court has been brought
in an inconvenient forum. The Company and each Selling Shareholder agrees that
any final judgment after exhaustion of all appeals or the expiration of time to
appeal in any such action or proceeding arising out of the sale of the Offered
Shares or this Agreement rendered by any such Federal court or state court shall
be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by law. Nothing contained in this
Agreement shall affect or limit the right of the Underwriters to serve any
process or notice of motion or other application in any other manner permitted
by law or limit or affect the right of the Underwriters to bring any action or
proceeding against the Company, any Selling Shareholder or any of their
respective property in the courts of any other jurisdiction. The Company and
each Selling Shareholder further agrees to take any and all action, including
the execution and filing of all such instruments and documents, as may be
necessary to continue such designations and appointments or such substitute
designations and appointments in full force and effect. The Company and each
Selling Shareholder hereby agrees with the Underwriters to the nonexclusive
jurisdiction of the courts of the State of New York, or the Federal courts
sitting in the County of New York in connection with any action or proceeding
arising from the sale of the Offered Shares or this Agreement brought by the
Company or the Underwriters.
- 41
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(e) Judgment Currency. The
obligation of the Company and each Selling Shareholder in respect of any sum due
to any Underwriter under this Agreement shall, notwithstanding any judgment in a
currency other than U.S. dollars or any other applicable currency (the “Judgment
Currency”), not be discharged until the first business day, following receipt by
such Underwriter of any sum adjudged to be so due in the Judgment Currency, on
which (and only to the extent that) such Underwriter may in accordance with
normal banking procedures purchase U.S. dollars or any other applicable currency
with the Judgment Currency; if the U.S. dollars or other applicable currency so
purchased are less than the sum originally due to such Underwriter hereunder,
the Company and each Selling Shareholder agree, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against such
loss. If the U.S. dollars or other applicable currency so purchased are greater
than the sum originally due to such Underwriter hereunder, such Underwriter
agrees to pay to the Company and each Selling Shareholder an amount equal to the
excess of the U.S. dollars or other applicable currency so purchased over the
sum originally due to such Underwriter hereunder.
(f)
Counterparts. This
Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same
instrument.
(g) Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the parties
hereto.
(h) Headings. The headings
herein are included for convenience of reference only and are not intended to be
part of, or to affect the meaning or interpretation of, this
Agreement.
- 42
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If the
foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
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Very
truly yours,
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By:
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Name:
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Title:
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[Insert
name(s) of Selling Shareholder(s)]
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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As
Attorneys-in-Fact acting on behalf of the Selling Shareholders named in
Schedule 2 to this
Agreement.
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Accepted: __________,
2010
X.X.
XXXXXX SECURITIES LLC
For
itself and on behalf of the
several
Underwriters listed
in
Schedule 1 hereto.
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By:
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Authorized
Signatory
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DEUTSCHE
BANK SECURITIES INC.
For
itself and on behalf of the
several
Underwriters listed
in
Schedule 1 hereto.
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By:
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Authorized
Signatory
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By:
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Authorized
Signatory
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Schedule
1
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Underwriter
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Number of Offered Shares
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X.X.
Xxxxxx Securities LLC
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Deutsche
Bank Securities Inc.
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Xxxxxxxxxxx
& Co. Inc.
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Xxxx
Capital Partners, LLC
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Xxxxxx
Xxxxxxxx & Company, Incorporated
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Xxxxxxx
Xxxxx & Company, LLC
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Total
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1
Schedule
2
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Selling Shareholders
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Number of Underwritten
Shares
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Number of Option Shares
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1
Schedule
3
Significant
Subsidiaries
SodaStream
International B.V.
SodaStream
Industries Ltd.
SodaStream
GmbH
SodaStream
USA, Inc.
SodaStream
(Switzerland) AG
1
Annex
A
Form of
Opinion of U.S. Counsel for the Company
1
Annex
B
Form of
Opinion of Israeli Counsel for the Company
1
Annex
C
Form of
Opinion of Counsel for the Selling Shareholders
1
Annex
D
a.
Pricing Disclosure
Package
b.
Pricing Information Provided Orally
by Underwriters
1
Exhibit
A
LOCK-UP
AGREEMENT
______,
2010
X.X.
XXXXXX SECURITIES INC.
DEUTSCHE
BANK SECURITIES INC.
As Representatives of
the several Underwriters listed
in
Schedule 1 to the
Underwriting
Agreement referred to
below
c/o X.X.
Xxxxxx Securities Inc.
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Re: SodaStream
International Ltd. – Initial Public Offering
Ladies
and Gentlemen:
The
undersigned understands that you, as Representatives of the several
Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting
Agreement”) with SodaStream International Ltd., an Israel corporation (the
“Company”), providing for the initial public offering (the “Public Offering”) by
the several Underwriters named in Schedule 1 to the Underwriting Agreement (the
“Underwriters”), of ordinary shares, of the Company (the “Securities”).
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
-1-
In
consideration of the Underwriters’ agreement to purchase and make the Public
Offering of the Securities, and for other good and valuable consideration
receipt of which is hereby acknowledged, the undersigned hereby agrees that,
without the prior written consent of X.X. Xxxxxx Securities Inc. and Deutsche
Bank Securities Inc. on behalf of the Underwriters, the undersigned will not,
commencing on the date hereof and ending 180 days after the date of the
prospectus relating to the Public Offering (the “Prospectus”), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
ordinary shares, par value NIS 0.10 per share, of the Company (the “Ordinary
Shares”) or any securities convertible into or exercisable or exchangeable for
Ordinary Shares (including without limitation, Ordinary Shares or such other
securities which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission (the “SEC”) and securities which may be issued upon exercise of a
stock option or warrant) (“Lock-Up Securities”), or publicly disclose the
intention to make any offer, sale, pledge or disposition, (2) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of Lock-Up Securities, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Ordinary
Shares or such other securities, in cash or otherwise or (3) make any demand for
or exercise any right with respect to the registration of any shares of Ordinary
Shares or any security convertible into or exercisable or exchangeable for
Ordinary Shares without the prior written consent of the Representatives, in
each case other than (A) the Securities to be sold by the undersigned pursuant
to the Underwriting Agreement, (B) transactions relating to Lock-Up Securities
acquired in open market transactions after the completion of the Public
Offering, (C) transfers of Lock-Up Securities as a bona fide gift or gifts, (D)
distributions of Lock-Up Securities to limited partners, members or stockholders
of the undersigned, (E) transfers to any immediate family of the undersigned or
a trust for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned (for purposes of this Letter Agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin), and (F) transfers of Lock-Up Securities to an
affiliate of the undersigned (for the purposes of this Letter Agreement,
“affiliate” shall have the meaning ascribed thereto in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”); provided that in the
case of any transfer or distribution pursuant to clause (C), (D), (E) or (F)
each donee or distributee shall execute and deliver to the Representatives a
lock-up letter in the form of this paragraph; and provided, further, that in the
case of any transaction, transfer or distribution pursuant to clause (B), (C),
(D), (E) and (F), no filing by any party (donor, donee, transferor or
transferee) under the Securities Act of 1933, as amended, or the Exchange Act,
or other public announcement shall be required or shall be made voluntarily in
connection with such transfer or distribution (other than a filing on a Form 5
made after the expiration of the 180-day period referred to above).
Nothing
in this Letter Agreement shall prevent the establishment by the undersigned of
any contract, instruction or plan (a “Plan”) that satisfies all of the
requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act; provided that it
shall be a condition to the establishment of any such Plan that no sales of the
Company’s capital stock shall be made pursuant to such a Plan prior to the
expiration of the 180-day period referred to above; and provided, further, such a Plan
may only be established if no public announcement of the establishment or the
existence thereof, and no filing with SEC or any other regulatory authority
shall be required or shall be made voluntarily by the undersigned, the Company
or any other person, prior to the expiration of the 180-day period referred to
above.
Notwithstanding
the foregoing, if (1) during the last 17 days of the 180-day restricted period,
the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 180-day period, the
restrictions imposed by this Letter Agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
In
furtherance of the foregoing, the Company, and any duly appointed transfer agent
for the registration or transfer of the securities described herein, are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Letter Agreement.
-2-
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Letter Agreement. All authority herein
conferred or agreed to be conferred and any obligations of the undersigned shall
be binding upon the successors, assigns, heirs or personal representatives of
the undersigned.
The
undersigned understands that, (i) if the Company notifies the Representatives in
writing that it does not intend to proceed with the public offering of the
Securities prior to the execution of the Underwriting Agreement or (ii) if the
Underwriting Agreement (other than the provisions thereof which survive
termination) shall terminate or be terminated prior to payment for and delivery
of the Ordinary Shares to be sold thereunder, the undersigned shall be released
from all obligations under this Letter Agreement. In addition, the
undersigned shall be released from all obligations under this Letter Agreement
if the registration statement related to the Public Offering does not become
effective by December 31, 2010. The undersigned understands that the
Underwriters are entering into the Underwriting Agreement and proceeding with
the Public Offering in reliance upon this Letter Agreement.
[Remainder
of the page intentionally left blank.]
-3-
This Letter Agreement and any claim,
controversy or dispute arising under or related to this Letter Agreement shall
be governed by and construed in accordance with the laws of the State of New
York, without regard to the conflict of laws principles thereof.
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Very
truly yours,
|
||
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[NAME
OF STOCKHOLDER]
|
||
|
By:
|
|
|
|
Name:
|
||
|
Title:
|
||
-4-
